Libby defense: Too preoccupied with Iraq

I. Lewis Libby
Former White House aide I. Lewis "Scooter" Libby is claiming his preoccupation with Iraq, Iran and other national security concerns kept him from remembering much that might connect him to the leak of a CIA operative's name.Haraz N. Ghanbari / AP file
/ Source: NBC News

I Lewis "Scooter" Libby - Vice President Cheney's former chief of staff, says he was too preoccupied with terrorist threats, Iraq's new government and emerging nuclear programs in Iran, Pakistan and North Korea to remember details of his conversations three years ago about a CIA operative, Valerie Plame.

The disclosure came when a previously sealed opinion from the judge hearing the CIA leak case was released by the court, providing a hint about subjects of classified documents Libby wants to use in his defense of charges of obstruction and perjury while testifying to the FBI and a grand jury about his conversations with reporters about Plame.

But U.S. District Judge Reggie Walton writes that determining which classified documents Libby can use is an arduous task which can be compared to "the role [of] Johnny Carson's character, Carnac the Magnificent, by requiring it to render rulings before knowing the exact context of how those rulings will coincide with other evidence that has actually been developed at trial."

During the time that Libby was speaking to reporters - in the summer of 2003 - and to the FBI investigators and the grand jury later, Libby says he was consumed with classified national security documents dealing with - among other things; threatened attacks by al-Qaida on America, nuclear proliferation by a Pakistani scientist, Iran's nuclear program and their potential to harbor al-Qaida members, and unrest in Liberia. These subjects, according to Libby, clouded his memory of what he was told by the Vice President and others about Plame and what he then told reporters about the former CIA operative. That memory defense is central to Libby's proposed testimony at trial.

Classified clash
Libby's legal team has been in a protracted battle with Special Counsel Patrick Fitzgerald over Libby's desire to present classified documents at trial to bolster the memory defense which they claim will portray him as so consumed by these matters of national security importance that any mistakes he made remembering his conversations with three reporters about Valerie Plame were, "inadvertent and not the product of willful disinformation."

At issue, according to the 38-page court document - which has many pages blacked out - are 129 pages of classified information which Libby wants to use for his defense. Walton has agreed that some classified documents can be used by Libby.

Libby's legal team claims there are nine subject areas which Libby wishes to use at trial when he testifies in an attempt to persuade a jury that he was so preoccupied with the sensitive national security matters that he did not remember - what his lawyer's describe as "insignificant" - details about his conversations with reporters about Plame, the wife of former Amb. Joseph Wilson.

National Security concerns
The nine areas that focused Libby's attention during the time that he was speaking with reporters are:

  1. Threatened attacks on American and American interests by Al Qaeda, Hezbollah, and other terrorist groups
  2. Enhancing the United States defenses for Homeland Security
  3. Nuclear proliferation by Pakistani scientist A.Q. Khan and efforts by the United States to stop his activities
  4. The development of nuclear weapons by North Korea
  5. Iran's development of nuclear weapons, its arrest and potential harboring of Al Qaeda members, and its involvement in Iraq
  6. The proper size and role of the Iraqi military and security forces in the months following the fall of Saddam Hussein's regime and the proper composition of the governing entity in Iraq
  7. The Israeli-Palestinian relationship, including the emergence of Mohmoud Abbas (Abu Mazen) as an alternative to Yasser Arafat and the threat that Hamas posed to peace and security
  8. A tense diplomatic crisis that arose during the first half of July 2003 resulting from the arrest of Turkish soldiers in Iraq by the Uniteds States military
  9. The unrest in Liberia in June and July 2003, culminating in the ousting of President Charles Taylor from office in early July 2003, the danger to the United States Embassy and it s occupants in Monrovia, Liberia, and the United States' role in protecting civilians caught in the middle of the conflict in Liberia.

Fitzgerald has said he may appeal Walton's ruling on the standards the judge will use for determining which classified materials Libby may use as evidence in defending himself.

The U.S. Court of Appeals would only have one month to consider the matter - a move that could delay the CIA/Leak trial scheduled to begin in January.

Joel Seidman is an NBC News producer based in Washington.